Untitled Texas Attorney General Opinion ( 2000 )

OFPlCE DP THE ATTORNE” GENERAL. STATE OF TEXAS
JOHN CORNYN
July l&2000
The Honorable Bill G. Carter Opinion No. JC-0257
Chair, Urban Affairs Committee
Texas House of Representatives Re: Whether a civil-service commission has
P.O. Box 2910 jurisdiction to hear an appeal of a written reprimand
Austin, Texas 78768-2910 that does not include a suspension or disciplinary
action, and related question (RQ-0176-JC)
Dear Representative Carter:
Section 143.010 of the Local Government Code establishes a procedure whereby a tire
tighter or police officer who wants to appeal from an action “for which an appeal or review is
provided by this chapter” may do so. TEX. Lot. GOV’T CODE ANN. 5 143.010(a) (Vernon 1999).
In those portions of chapter 143 that apply to the municipality about which you ask, an appeal or a
review is provided for a passover from a promotion, a suspension, and a demotion. See id.
$5 143.036, ,053, ,054. Youaskwhether, underchapter 143, subchapterD oftheLoca1 Government
Code, a civil-service commission has jurisdiction to hear an appeal of awritten reprimand that does
not involve a suspension or demotion, or, we assume, does not serve as the basis for a promotional
passover. See Letter from Honorable Bill G. Carter, Chair, Urban Affairs Committee, Texas House
OfRepresentatives, to Honorable John Comyn, Texas Attorney General (Jan. 20,200O) (on file with
Opinion Committee) [hereinafter “Request Letter”]; TEX. Lot. GOV’T CODE ANN. ch. 143, subch.
D (Vernon 1999 & Supp. 2000). Because the relevant portions of chapter 143 do not provide for an
appeal of a written reprimand, we conclude that a civil-service commission has no jurisdiction to
consider the appeal.
You also ask whether a written reprimand must be placed in the civil-service commission
personnel tile that is open to the public under section 143.089(a) of the Local Government Code or
in the department file that is confidential under section 143.089(g). See Request Letter, sup+ at 1;
TEX. LOC. GOV’TCODEANN. 5 143.089(a), (g) (V emon 1999). Because it is not a disciplinary action
for the purposes of subchapter D, a written reprimand is not an action that may be taken “in
accordance with [chapter 1431” under section 143.089(a)(2). See TEX. LOC. GOV’T CODE ANN.
5 143,089(a)(2) (Vernon 1999). Consequently, it must be placed in the confidential department tile
and not in the public civil-service-commission tile.
You ask about a municipality that is not subject to subchapters G, H, I, or J of chapter 143.
Subchapters G, H, and J apply to a municipality with a population of 1.5 million or more.
Subchapter I applies to a municipality with a population of at least 460,000 (but less than 1.5
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million) that operates under a city-manager form of government and that has adopted chapter 174
of the Local Government Code. Accordingly, our answers apply only to a municipality that is not
subject to subchapters G, H, I, or J, i.e., a municipality with a population lower than 1.5 million, or,
if the municipality has a population between 460,000 and 1.5 million, one that does not operate
under a city-manager form of government or has not adopted chapter 174 of the Local Government
Code.
You explain that “[flire and police chiefs frequently issue written reprimands” to discipline
civil-service employees. Request Letter, supru, at 1. While you do not further describe the practice,
one of the parties who briefed the issue included, as examples, copies of written reprimands. See
Brieffrom Combined Law Enforcement Associations ofTexas, exhibits, to Honorable John Comyn,
Texas Attorney General (Mar. 2, 2000) (on tile with Opinion Committee) [hereinafter “CLEAT
Brief’]. In general, each written reprimand is addressed to a particular civil-service employee and
describes an incident of misconduct that is attributed to the addressee. Id. The written reprimand
cites the rule or rules that the alleged misconduct violated. Id. The written reprimand then
admonishes the addressee and warns that future violations of this nature will result in more severe
discipline. Id. The written reprimand instructs the addressee that a copy of the letter will be placed
in the addressee’s personnel file (although the samples we have been sent do not indicate whether
this is the public personnel file maintained under section 143.089(a) ofthe Local Government Code
or the confidential department file maintained under section 143.089(g)). Id.; see TEX. LOC. Gov’~
CODE ANN. $ 143.089(a), (f), (g) (V emon 1999). Finally, the written reprimand informs the
addressee that he or she may file a written response to be included in the personnel file with a copy
of the reprimand. See CLEAT Brief, supra. Each written reprimand included as an example is
signed by a division head. Id.
Chapter 143 ofthe Local Government Code, pertaining to municipal civil service, establishes
procedures for the investigation and review of alleged instances of misconduct by fire- and police-
department employees. A municipal civil-service commission or a member of the commission
designated by the commission may investigate alleged violations of the commission’s rules of
conduct. See TEX. Lot. GOV’T CODE ANN. § 143.009(a) (Vernon 1999) (authorizing commission
or commissioner to determine whether chapter 143 and rules passed thereunder are being obeyed).
Upon a finding that an officer has violated the statute or a local rule, the commission may
impose disciplinary actions such as those listed in subchapter D: removal or suspension, see id.
$5 143.051-,053, ,056 (Vernon 1999 & Supp. 2000); demotions, see id. 5 143.054 (Vernon 1999);
and uncompensated duty, see id. 5 143.055.
Chapter 143 endows a civil-service employee with an express right to appeal some
commission actions. In a municipality with a population lower than 1.5 million, an employee may
appeal a disciplinary suspension to the civil-service commission. Id. $ 143.053 (Vernon Supp.
2000). An employee who is demoted has a right to a “public hearing,” which we presume provides
some sort of review. See id. 5 143.054 (Vernon 1999). A civil-service employee may appeal to the
commission if the employee is passed over for a promotion. See id. 5 143.036. Conversely, while
the statute provides for a civil-service employee to be disciplined by the assignment of
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uncompensated duty, the statute does not expressly provide a right to appeal that assignment. See
id. 5 143.055. (As a reminder, we are not considering in this opinion subchapters G, H, I, or J.)
A fire tighter or police officer who wishes to appeal to the commission “from an action for
which an appeal or review is provided by” chapter 143 must file the appeal within ten days of the
date the action occurred. See id. 5 143.010(a). The commission must maintain a public record of
the appeal proceedings “with copies available at cost.” See id. 9 143.010(h).
Section 143.089, which is part of subchapter F of chapter 143, requires a civil-service
director or the director’s designee to maintain a personnel tile on each tire fighter and police officer
and lists the items that are to be retained in the tile:
(a) The director or the director’s designee shall maintain a
personnel tile on each tire tighter and police officer. The personnel
file must contain any letter, memorandum, or document relating to:
(1) a commendation, congratulation, or honor bestowed
on the tire tighter or police officer by a member of the public or
by the employing department for an action, duty, or activity that
relates to the person’s official duties;
(2) any misconduct by the fire fighter or police officer if
the letter, memorandum, or document is from the employing
department and if the misconduct resulted in disciplinary action
by the employing department in accordance with this chapter; and
(3) the periodic evaluation of the fire fighter or police
officer by a supervisor.
(b) A letter, memorandum, or document relating to alleged
misconduct by the fire fighter or police officer may not be placed in
the person’s personnel tile if the employing department determines
that there is insufficient evidence to sustain the charge ofmisconduct.
(c) A letter, memorandum, or document relating to
disciplinary action taken against the tire tighter or police officer or to
alleged misconduct by the tire tighter or police officer that is placed
in the person’s personnel tile as provided by Subsection (a)(2) shall
be removed from the employee’s tile if the commission finds that:
(1) the disciplinary action was taken without just cause;
or
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(2) the charge of misconduct was not supported by
sufficient evidence.
(d) If a negative letter, memorandum, document, or other
notation of negative impact is included in a tire tighter’s or police
officer’s personnel file, the director or the director’s designee shall,
within 30 days after the date of the inclusion, notify the affected fire
fighter or police officer. The tire tighter or police officer may, on or
before the 15th day after the date of receipt of the notification, file a
written response to the negative letter, memorandum, document, or
other notation.
(f) The director or the director’s designee may not release any
information contained in a fire fighter’s or police officer’s personnel
file without first obtaining theperson’s written permission, unless the
release of the information is required by law.
(g) A fire or police department may maintain a personnel tile
on a tire tighter or police officer employed by the department for the
department’s use, but the department may not release any information
contained in the department file to any agency or person requesting
information relating to a fire tighter or police officer. The department
shall refer to the director or the director’s designee aperson or agency
that requests information that is maintained in the fire fighter’s or
police officer’s personnel tile.
TEX. Lot. GOV’T CODE ANN. 5 143.089 (Vernon 1999).
You state that a written reprimand is not a disciplinary action under chapter 143, subchapter
D (sections 143.05 1 - ,057) and that a civil-service commission therefore does not have jurisdiction
to hear an appeal of a written reprimand. See Request Letter, supra, at 1. However, you suggest that
section 143.089 “confuses the issue.” Id. at l-2. We gather from your letter that, because section
143.089(d) refers to “a negative letter, memorandum, document, or other notation of negative
impact” that may be included in the civil-service director’s personnel tile and permits the affected
fire fighter or police officer to respond to the negative writing, you believe that the written reprimand
must be retained in the public personnel tile and that a tire fighter or police officer may appeal the
negative letter. See id. at 2; TEX. Lot. GOV’T CODE ANN. 5 143.089(d) (Vernon 1999).
The City of Fort Worth contends, on the other hand, that a written reprimand may not be
appealed to the civil-service commission and must be placed in the confidential tile retained in
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accordance with section 143.089(g). See Request Letter, supra, at 2. You summarize the City of
Fort Worth’s argument:
The City of Fort Worth takes the position that written reprimands
cannot be the subject of appeal. Section 143.089(c) refers to
“disciplinary action.” The City interprets this term to mean
disciplinary action that is imposed pursuant to Subchapter D, which
includes [only] suspensions and involuntary demotions. The
language in Section 143.089(a)(2) supports this position because it
requires the civil service director to maintain a file of documents
relating to disciplinary actions taken “in accordance with this
chapter.” When taken in context, a written reprimand is not Chapter
143 discipline because it is not a suspension or involuntary demotion.
According to the City’s position, the commission must not hear
appeals ofwritten reprimands because it does not have jurisdiction to
do so. Furthermore, according to the City’s position, [a] written
reprimand belongs in the confidential department file.
Id.
Given these competing views, you ask first whether a civil-service commission has
jurisdiction to hear an appeal of a written reprimand that does not include a suspension or
involuntary demotion. In other words, you ask, “Is a written reprimand a disciplinary action
pursuant to Chapter 143?” Again, we limit your question to a municipality that is not subject to
chapters G, H, I, or J.
A written reprimand is not a “disciplinary action” for the purpose of subchapter D.
Subchapter D provides only for removal or suspension, see TEX. LOC. GOV’TCODE ANN. $$143.05 1,
,052, ,056 (Vernon 1999); demotions, see id. 5 143.054; and assignment to uncompensated duty, see
id. § 143.055. By contrast, a written reprimand is a “punitive action” for the purpose of subchapter
I, but subchapter I does not apply to the issue you raise. See id. § 143.312(b)(5) (defining “punitive
action” to include written reprimand); Letter from Linda Cobb, Civil Service Director, City of Fort
Worth, to Ms. Elizabeth Robinson, Chair, Opinion Committee (June 2,200O) (on file with Opinion
Committee). Butcf TEX.LOC. GOV’TCODEANN. 3 143.312(k)(Vemon 1999)(“[i]faninvestigation
does not result in punitive action but does result in a written reprimand,” fire fighter or police
officer must be offered opportunity to sign reprimand).
Whether a written reprimand is a disciplinary action for the purpose of subchapter D is
irrelevant to the issue of whether the reprimand may be appealed to the civil-service commission,
however. As a matter of law, the sole question is whether an employee has an express statutory right
to appeal a written reprimand. The right to appeal “exists only where expressly provided for by
statute or ordinance, or where the administrative action complained ofviolates a constitutional right
or deprives one of a vested property right.” City of San Antonio v. Resow, 716 S.W.2d 633, 635
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(Tex. App.-Corpus Christi 1986), rev ‘d on othergrounds, 734 S.W.2d 659 (Tex. 1987), cert. denied,
484 U.S. 1063 (1988).
A civil-service commission has jurisdiction to hear only those actions for which appeal is
expressly provided. As a matter of state law, a civil-service commission in a municipality that is not
subject to subchapter G, H, I, or J may hear appeals of only “promotional passovers, disciplinary
suspensions, and demotions.” Corbitt v. City of Temple, 941 S.W.2d 354, 355 (Tex. App.-Austin
1977, writ denied). Subchapter D of chapter 143 provides for appeals of only suspensions and
demotions. See TEX. LOC. GOV’TCODEANN. $5 143.052, ,053, ,054, ,056 (Vernon 1999 & Supp.
2000). Subchapter B provides in addition for appeal when an employee is passed over for a
promotion. See id. $9 143.034, ,036. Indeed, chapter 143 explicitly recognizes that some actions
may not be appealed to the civil-service commission. See Corbitt, 941 S.W.2d at 355. Section
143.010 states that a fire fighter or police officer may appeal to the commission “an action for which
an appeal or review is provided by this chapter,” thus acknowledging that the chapter may not
provide appeals for certain actions. TEX. Lot. GOV’T CODE ANN. 5 143.010(a) (Vernon 1999).
Because appeal is not expressly provided for the issuance of a written reprimand, we
conclude that, as matter of law, a civil-service commission in a municipality that is not subject to
subchapter G, H, I, or J has no jurisdiction to hear an appeal of a written reprimand. Conversely, as
a matter of law, a fire fighter or police officer has no right to appeal the issuance of a written
reprimand. Section 143.089, relating to the contents of the civil-service director’s public and the
department’s confidential personnel files, does not endow a civil-service employee with a
substantive right to appeal an action of the civil-service commission. Nonetheless, if a written
reprimand is a decision of the civil-service commission, the fire fighter or police officer who is the
subject of the reprimand may appeal the decision to the appropriate district court. See id.
5 143.015(a) (Vernon 1999).
We do not here consider whether any applicable municipal ordinance provides a right to
appeal a written reprimand. See Tex. Att’y Gen. Op. Nos. JC-0143 (1999) at 3 (“In deference to city
officials, this office does not generally construe city ordinances.“); JM-846 (1988) at 1 (“As a
matter ofpolicy, this office does not interpret city charter provisions.“). Nor do we consider whether
the issuance of a particular written reprimand violates a fire fighter’s or police officer’s constitutional
rights or deprives a fire fighter or police officer of a vested property right. See, e.g., Tex. Att’y Gen.
Op. Nos. JC-0152 (1999) at 12-13 (stating that whetherparticular circumstanceviolates constitution
as matter of fact is beyond purview of this office); JC-0001 (1999) at 6 (declaring inability to assess
whether “issue comports with the constitutional limit as a matter of fact.“).
Your second question involves public rights of access to written reprimands. The answer
depends upon whether a written reprimand may be kept in the civil-service director’s personnel tile
maintained under section 143.089(a) ofthe Local Government Code or the department personnel file
maintained under section 143.089(g). If a written reprimand is to be placed in the civil-service
director’s personnel file under subsection (a) (0, it is generally public information. See TEX. LOC.
GOV’T CODE ANN. 5 143.089(a), (f) (Vernon 1999). If, on the other hand, a written reprimand must
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be placed in the department personnel tile under section 143.089(g), it is confidential and may not
be released to the public, See id. § 143.089(g).
The public, civil-service director’s tile is maintained in accordance with section 143.089(a) -
(f), which, among other things, “requires the director of the tire fighters’ and police officers’ civil
service commission or [a] designee to maintain a personnel tile for each tire tighter and police
officer” and “specifies [the] kinds of information [that] must be placed in the file.” Tex. Att’y Gen.
ORL-562 (1990) at 5. Retained in the civil-service director’s personnel file are any letter,
memorandum, or document relating to commendations, congratulations, or honors; relating to
misconduct if the letter, memorandum, or document is from the employing department and “iffhe
misconduct resulted in disciplinary action by the employing department in accordance with this
chapter”; and relating to periodic evaluations by a supervisor. See TEX. Lot. GOV’T CODE ANN.
5 143.089(a) (Vernon 1999) (emphasis added); accord City of San Antonio Y. Texas Attorney Gen.,
851 S.W.2d 946, 948 (Tex. App.-Austin 1993, writ denied).
Subsection (g) “permits a tire or police department to maintain a. personnel tile for” each
of its tire fighters or police officers that is separate from the civil-service director’s personnel file.
Tex. Att’y Gen. ORD562 (1990) at 6. Contrary to the specifically defined categories of information
that may be placed in the civil-service director’s personnel tile, the category ofinformation that may
be placed in the confidential department tile under subsection (g) is not defined. This office has
construed subsection (g) to authorize a police or fire department to maintain a separate tile on an
employee or officer that contains more and different information than may be retained in the same
employee’s or officer’s civil-service personnel file. Id. The subsection (g) department file need not
“merely duplicate the civil service file.” Id. In the view of this office, the legislative history
supports this construction:
Supporters ofthe bill enacting subsection(g) testified that the
bill was intended to allow a police or fire department to compile a
separate personnel file for its own use without limiting the kind of
information that could be placed in it, unlike the civil service
personnel files maintained under subsection (a) of section 143.089.
TestimonyofRonDeLordonH.B. 1368, [President ofthecombined
Law Enforcement Associations ofTexas]. The department personnel
file, then, might contain unfounded negative information relating to
the police officer or fire tighter, precisely the kind of information that
could not be included in the civil service personnel tile.
Id. at 7.
For us to determine that a written reprimand must be placed in the public, civil-service
director’s tile, a written reprimand must constitute “a disciplinary action” imposed “by the
employing department in accordance with this chapter.” TEX. Lot. GOV’T CODE ANN.
§ 143.089(a)(2) (Vernon 1999). A written reprimand is not a commendation for the purpose of
The Honorable Bill G. Carter - Page 8 (X-0257)
section 143.089(a)(l) or an evaluation for the purpose of subsection (a)(3); accordingly, neither
subsection (a)( 1) nor (a)(3) allow the placement of a written reprimand in the civil-service director’s
public personnel tile. With respect to whether a written reprimand may be placed in the civil-service
director’s personnel tile under subsection (a)(2), we presume the written reprimand is “from the
employing department,” as the examples that we have seen were signed by the department director
or someone who appeared to be within the subject employee’s chain of command. Accordingly, we
must consider only whether a written reprimand is a “document relating to any misconduct by
[a] tire fighter or police officer. [that] resulted in disciplinary action by the employing department
in accordance with this chapter.” TEX. Lot. GOV’T CODE ANN. 5 143.089(a)(2) (Vernon 1999).
We conclude that a written reprimand is not a disciplinary action that may be imposed “by
the employing department in accordance with this chapter” with respect to a civil-service
commission that is not subject to subchapter G, H, I, or J. The only disciplinary actions that such
a civil-service commission may impose “in accordance with this chapter” are those imposed “in
accordance with” subchapter D. As we have stated, subchapter D, which is entitled “Disciplinary
Actions,” provides only for removal or suspension, demotion, and assignment to uncompensated
duty. See id. 3s 143.051, ,052, ,054, ,055, ,056 (Vernon 1999); cf: TEX. GOV’T CODE ANN.
5 411.072(a)(l) (Vernon 1998) (defining “disciplinary action” in context of employee grievances
within Department of Public Safety, to mean “discharge, suspension, or demotion”). A written
reprimand is not a “disciplinary action” imposed under subchapter D.
Neither subsection (c), which mandates the removal of documents relating to unjustified
disciplinary actions or unsubstantiated allegations ofmisconduct, nor(d), which accords due-process
rights to an individual who is the subject of a negative document, of section 143.089 authorizes a
civil-service director to place a written reprimand in the director’s personnel file. See TEX. LOC.
GOV’TCODE ANN. 5 143.089(c), (d) (V emon 1999). You suggest that these subsections impliedly
authorize a civil-service director to place in the director’s personnel tile a written reprimand, which
is a substantiated charge of misconduct. See Request Letter, supra, at 2. We disagree. Subsection
(a) contains an exclusive list of the documents that must be retained in the director’s personnel tile,
and subsections (c) and (d) do not create additional categories of documents that must be retained
in the director’s personnel tile. The court of appeals discussed the relationship between a document
in a civil-service director’s personnel tile relating to misconduct by a tire fighter or police officer
that is from the employing department and that resulted in disciplinary action (“an item (2)
document”) and subsections (c) and (d) in City of Sun Antonio v. Texas Attorney General:
When an item (2) document enters an individual’s personnel tile, the
director must notify the police officer or tire fighter within thirty
days; and he or she may respond to the document within fifteen days.
5 143.089(d). The document must be removedfrom the individual’s
file ifthe commissionfinds the disciplinary action was taken without
just cause or the charge of misconduct was not supported by
sufficient evidence. § 143.089(c).
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851 S.W.2d at 948. Thus, subsections (c) and (d) apply only to documents that are already in a
director’s personnel tile in accordance with section 143.089(a)(2).
Consequently, a written reprimand may not be placed in the public, civil-service director’s
personnel tile. The department’s confidential personnel tile, maintained under section 143.089(g)
ofthe Local Government Code, is the appropriate repository for a written reprimand. See TEX. Lot.
GOV’T CODE ANN. 5 143.089(g) (Vernon 1999); see also City of San Antonio, 851 S.W.2d at 949
(“Subsection(g) authorizes but does not require City fire and police departments to maintain for their
use a separate and independent personnel tile on a police officer or fire tighter.“).
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SUMMARY
As a matter of law, under chapter 143 of the Local
Government Code, a municipal civil-service commission that is not
subject to subchapters G, H, I, or J lacks jurisdiction to consider an
appeal of a written reprimand that does not involve a suspension,
demotion, or promotional Passover. The department tile that is
confidential under section 143.089(g) ofthe Local Government Code
is the appropriate repository for such a written reprimand. It may not
be placed in the civil-service director’s personnel tile that is open to
the public under section 143.089(f).
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee